Does Obama Have the Authority to Kill Americans?

Feb. 12 (Bloomberg) -- A leaked Justice Department white
paper has renewed the debate over presidential power and the war
on terrorism. The timing of the leak, just days into President
Barack Obama’s second term, was convenient for the many people
who have switched sides in that debate.

Conservatives who supported George W. Bush’s claims of war
power are now alarmed by the prospect of four more years of
Obama ordering drone strikes. Without any great self-awareness,
they criticize the hypocrisy of liberals who have made the
reverse commute between principled positions.

To the extent any of this debate has been serious, it has
focused on whether any president should have the authority to
order that people be killed without any judicial review, and
whether it should make any difference if someone on the kill
list is an American citizen.

The white paper says the administration can target any U.S.
citizen who is “a senior operational leader” of al-Qaeda or “an
associated force” on two conditions: if he can’t be captured and
if “an informed, high-level official” thinks he poses an
“imminent threat of violent attack.” The paper rejects the
normal definition of “imminent threat,” reasoning that these
people are always plotting to do us harm. It also seems to
suggest that capture will rarely be feasible, since we have to
move fast to stop these plots.

Death Warrant

In practice, then, the White House seems to believe that a
U.S. citizen who is high up in al-Qaeda, or an affiliate, has
signed his own death warrant. (Although the paper doesn’t
address the question, it implies that non-citizens wouldn’t even
need to be high up to be killed.)

To support its argument that it has the legal authority to
kill citizens, the administration has cited the Authorization
for Use of Military Force, which Congress passed three days
after the attacks of Sept. 11. That legislation gives the
president the power “to use all necessary and appropriate force
against those nations, organizations, or persons he determines
planned, authorized, committed, or aided the terrorist attacks
that occurred on September 11, 2001, or harbored such
organizations or persons, in order to prevent any future acts of
international terrorism against the United States by such
nations, organizations or persons.”

It isn’t clear that this justification goes as far as the
administration maintains. More than 11 years after the attacks,
an al-Qaeda affiliate could be led by someone with no real
complicity in them. It would be a stretch to say the 2001 law
justifies taking action against such a person whether he is a
citizen or not. The white paper’s secondary justification -- the
president’s “constitutional responsibility to protect the
country” -- doesn’t fill the gap. That responsibility requires
the president to act, even in the absence of congressional
authorization, against someone planning a specific attack on
America. The white paper has more amorphous threats in mind.

It makes sense for the president to have the authority to
order the killing of people who weren’t involved in the Sept. 11
attacks and aren’t known to be hatching a specific attack, but
only if they are, in fact, at war with the U.S. There isn’t, and
can’t be, due process on a battlefield -- and we don’t check
citizenship, either. But the war on terrorism has evolved since
2001, and Congress ought to update its definition of the enemy
with whom America is at war.

New Rules

As it does so, it could lay down rules that provide the war
on terrorism with more legal and political legitimacy. If this
fight has some of the features of a conventional war and some of
the features of law enforcement, Congress may need to come up
with new institutions to regulate it: “national security courts”
to handle detained enemy combatants, for example.

Even the best rules are not, however, a substitute for
morally informed judgment. And we have reason to doubt that such
judgment is being exercised. The most troubling question the
administration’s strategy against terrorism raises is whether
its reliance on drones is eroding the principle that collateral
damage to innocents be minimized.

The administration assures us that it is mindful of this
principle. Yet it hasn’t disputed a New York Times report that
it simply presumes that “all military-age males in a strike
zone” are combatants. Liberals, moderates and conservatives
should all raise their voices against this practice. The war on
terrorism needs a sound moral as well as legal foundation. And
that will require not just legislative changes but political
mobilization by citizens willing to ask the right questions of
America’s leaders.

(Ramesh Ponnuru is a Bloomberg View columnist and a senior
editor at National Review. The opinions expressed are his own.)